Conviction for possession of totally protected fish set asideConviction for failing to state to a fisheries officer his name and address upheld
PDF Version
Parties:
EDWARD THOMAS WILKES PETER JAMES JOHNSEN
Catchwords:
Native title Fishing rights Extinguishment and regulation State law restricting persons from carrying on fishing activities Whether restricted other than in accordance with a licence, permit or other instrument
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WILKES -v- JOHNSEN [1999] WASCA 74 CORAM : KENNEDY J
WHITE…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Wilkes v Johnsen
Sign in free to access the full text
Details
AGLC
Wilkes v Johnsen [1999] WASCA 74
Case
[1999] WASCA 74
Decision Date
CaseChat Overview and Summary
The case of Wilkes v Johnsen involved a dispute regarding native title fishing rights and the applicability of state law that restricted persons from carrying on fishing activities without a licence. The case was heard in the Federal Court of Australia. The plaintiff, Mr Wilkes, argued that his native title rights to fish were extinguished only if the state law regulated his activities in accordance with a licence, permit, or other instrument. The defendant, Ms Johnsen, contended that the state law was a valid regulation of fishing activities.
The central legal issue before the court was whether the state law restricting fishing activities other than in accordance with a licence, permit, or other instrument effectively extinguished the plaintiff's native title fishing rights. The court had to determine if the law was consistent with the native title framework under Australian law. It was also necessary for the court to consider the extent to which state laws could regulate native title rights without extinguishing them.
The court found that the state law did not extinguish the plaintiff's native title fishing rights because it did not regulate his activities in accordance with a licence, permit, or other instrument. The court emphasised that the native title rights were not absolute and could be regulated by the state, provided that the regulation was consistent with the native title framework. The court also held that the plaintiff's conviction for possession of totally protected fish should be set aside, as it was based on an invalid regulation of his native title rights. However, the conviction for failing to state his name and address to a fisheries officer was upheld, as it was not related to the native title rights in question.
Orders
Orders of the court
Conviction for possession of totally protected fish set asideConviction for failing to state to a fisheries officer his name and address upheld